[Federal Register Volume 59, Number 230 (Thursday, December 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29422]
[[Page Unknown]]
[Federal Register: December 1, 1994]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 3
[FAR Case 94-803]
Federal Acquisition Regulation; Whistleblower Protections for
Contractor Employees (Ethics)
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: This proposed rule is issued pursuant to the Federal
Acquisition Streamlining Act of 1994, Public Law 103-355 (the Act). The
FAR Council is considering the addition of a new subpart 3.9, entitled
``Whistleblower Protections for Contractor Employees.'' This new
subpart is the result of the enactment of Sections 6005 and 6006 of the
Act. This regulatory action was not subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993.
DATES: Comments should be submitted on or before January 30, 1995 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to: -
General Services Administration, FAR Secretariat (VRS),-18th & F
Streets, NW, Room 4037, Washington, DC 20405.
Please cite FAR case 94-803 in all correspondence related to this
case.
FOR FURTHER INFORMATION CONTACT: Mr. Julius Rothlein, Ethics Team
Leader, at (703) 697-4349 in reference to this FAR case. For general
information, contact the FAR Secretariat, Room 4037, GS Building,
Washington, DC 20405 (202) 501-4755. Please cite FAR case 94-803.
SUPPLEMENTARY INFORMATION:
A. Background
The Federal Acquisition Streamlining Act of 1994, Pub. L. 103-355,
provides authorities that streamline the acquisition process and
minimize burdensome government-unique requirements. Major changes that
can be expected in the acquisition process as a result of the Federal
Acquisition Streamlining Act implementation include changes in the
areas of Commercial Item Acquisition, Simplified Acquisition
Procedures, the Truth in Negotiations Act, and introduction of the
Federal Acquisition Network.
FAR case 94-803 originated because with the enactment of Sections
6005 and 6006, whistleblower protections for contractor employees are
now virtually identical for contractors employed by both DoD and
civilian agencies.
A new subpart is being added to FAR Part 3 which states that these
protections apply to contractor employees on all Government contracts.
In implementing these sections, guidance found at page 222 of
Conference Report 103-712 was considered which states: ``The conferees
direct that the regulations implementing this provision should
establish procedures and standards that are as similar as practicable
to the procedures and standards already established in Department of
Defense regulations.'' However, unlike DoD FAR Supplement (DFARS)
subpart 203.71 (which implemented the former, and now repealed 10
U.S.C. 2409a), a clause which must be included in all contracts is not
being mandated. It is noted that, unlike 10 U.S.C. 2409a, neither
Section 6005 nor 6006 contains any language which mandates the
inclusion of a specific clause in contracts to enforce the prohibitions
of the law. Enforcement of this law, like so many other laws, is not
dependent on the presence of a clause in the contract. Furthermore, by
not prescribing a clause for all contracts, the physical size of the
contract document can be reduced and thereby further the acquisition
streamlining effort.
This case also includes a provision which requires that
whistleblower complaints be filed not more than 180 days after the date
on which the violation is alleged to have occurred or the date on which
the violation was discovered. This approach was used to ensure that the
Inspector General will be reviewing matters that can be reasonably
investigated. While neither Section 6005 nor 6006 contain a statute of
limitations, 10 U.S.C. 2409a and its implementing regulations provided
for same, and it is reasonable to include same in these regulations.
The FAR Council is interested in an exchange of ideas and opinions
with respect to the regulatory implementation of the Act. For that
reason, the FAR Council is conducting a series of public meetings.
However, the FAR Council has not scheduled a public meeting on this
rule (FAR case 94-803) because of the clarity and non-controversial
nature of the rule. If the public believes such a meeting is needed
with respect to this rule, a letter requesting a public meeting and
outlining the nature of the requested meeting shall be submitted to and
received by the FAR Secretariat (see ADDRESSES caption) on or before
January 3, 1995.
The FAR Council will consider such requests in determining whether
a public meeting on this rule should be scheduled.
B. Regulatory Flexibility Act
The proposed rule is not expected to have significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. During the past
four years under 10 U.S.C. 2409a, DoD processed less than 70 cases,
half against large contractors. Contractor employee whistleblower
actions are not expected to increase significantly as a result of the
enactment of Sections 6005 and 6006. An Initial Regulatory Flexibility
Analysis has, therefore, not been performed. Comments are invited from
small businesses and other interested parties. Comments from small
entities concerning the affected FAR subpart will also be considered in
accordance with Section 610 of the Act. Such comments must be submitted
separately and cite FAR case 94-803 in correspondence.
C. Paperwork Reduction Act-
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose recordkeeping or information
collection requirements, or collections of information from offerors,
contractors, or members of the public which require the approval of the
Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 3
Government procurement.
Dated: November 23, 1994.
Edward C. Loeb,
Deputy Project Manager for the Implementation of the Federal
Acquisition Streamlining Act of 1994.
Therefore, it is proposed that 48 CFR Part 3 be amended as set
forth below:
PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST-
1. The authority citation for 48 CFR Part 3 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Subpart 3.9, consisting of sections 3.900 through 3.906, is
added to read as follows:
Subpart 3.9--Whistleblower Protections for Contractor Employees
3.900 Scope of subpart.
3.901 Definitions.
3.902 Applicability.
3.903 Policy.
3.904 Procedures for filing complaints.
3.905 Procedures for investigating complaints.
3.906 Remedies.
3.900 Scope of subpart.-
This subpart implements 10 U.S.C. 2409 and 41 U.S.C. 251, et seq.,
as amended by Public Law 103-355, Sections 6005 and 6006.
3.901 Definitions.-
Authorized official of an agency means an officer or employee
responsible for contracting, program management, audit, inspection,
investigation, or enforcement of any law or regulation relating to
Government procurement or the subject matter of the contract.
Authorized official of the Department of Justice means any person
responsible for the investigation, enforcement, or prosecution of any
law or regulation.
Head of agency, within the Department of Defense, means the
Secretaries of Defense, Army, Navy, and Air Force. For civilian
agencies, see (FAR) 48 CFR 2.101.
Inspector General means an Inspector General appointed under the
Inspector General Act of 1978, as amended. In the Department of Defense
that is the DOD Inspector General. In the case of an executive agency
that does not have an Inspector General, the duties shall be performed
by an official designated by the head of the executive agency.
3.902 Applicability.
This subpart applies to all Government contracts.
3.903 Policy.
Government contractors shall not discharge, demote or otherwise
discriminate against an employee as a reprisal for disclosing
information to a Member of Congress, an authorized official of an
agency or of the Department of Justice, relating to a substantial
violation of law related to a contract (including the competition for
or negotiation of a contract).
3.904 Procedures for filing complaints.-
(a) Any employee of a contractor who believes that he or she has
been discharged, demoted, or otherwise discriminated against contrary
to the policy in 3.903 may file a complaint with the Inspector General
of the agency that awarded the contract.
(b) Complaints shall be filed not more than 180 days after the date
on which the reprisal is alleged to have occurred or the date on which
the reprisal was discovered, whichever is later.
(c) The complaint shall be signed and contain--
(1) The name of the contractor;
(2) The contract number, if known; if not, a description reasonably
sufficient to identify the contract(s) involved;
(3) The substantial violation of law giving rise to the disclosure;
(4) The nature of the disclosure giving rise to the discriminatory
act; and
(5) The specific nature and date of the reprisal.
3.905 Procedures for investigating complaints.
(a) Upon receipt of a complaint, the Inspector General shall
conduct an initial inquiry. If the Inspector General determines that
the complaint is frivolous or for other reasons does not merit further
investigation, the Inspector General shall advise the complainant that
no further action on the complaint will be taken.
(b) If the Inspector General determines that the complaint merits
further investigation, the Inspector General shall notify the
complainant, contractor, and head of the contracting activity. The
Inspector General shall conduct an investigation and provide a written
report of findings to the head of the agency.-
(c) Upon completion of the investigation, the head of the agency
shall ensure that the Inspector General provides the report of findings
to--
(1) The complainant and any person acting on the complainant's
behalf;-
(2) The contractor alleged to have committed the violation; and-
(3) The head of the contracting activity.
(d) The complainant and contractor shall be afforded the
opportunity to submit a written response to the report of findings
within 30 days to the head of the agency.
(e) At any time, the head of the agency may request additional
investigative work be done on the complaint.
3.906 Remedies.-
(a) If the head of the agency determines that a contractor has
subjected one of its employees to a reprisal for providing information
to a Member of Congress, an authorized official of an agency or the
Department of Justice, the head of the agency may take one or more of
the following actions:
(1) Order the contractor to take affirmative action to abate the
reprisal.-
(2) Order the contractor to reinstate the person to the position
that the person held before the reprisal, together with the
compensation (including back pay), employment benefits, and other terms
and conditions of employment that would apply to the person in that
position if the reprisal had not been taken.
(3) Order the contractor to pay the complainant an amount equal to
the aggregate amount of all costs and expenses (including attorneys'
fees and expert witnesses' fees) that were reasonably incurred by the
complainant for, or in connection with, bringing the complaint
regarding the reprisal.
(b) Whenever a contractor fails to comply with an order, the head
of the agency shall request the Department of Justice to file an action
for enforcement of such order in the United States district court for a
district in which the reprisal was found to have occurred. In any
action brought under these provisions, the court may grant appropriate
relief, including injunctive relief and compensatory and exemplary
damages.
(c) Any person adversely affected or aggrieved by an order issued
under these provisions may obtain review of the order's conformance
with the law, and these regulations, in the United States Court of
Appeals for a circuit in which the reprisal is alleged in the order to
have occurred. No petition seeking such review may be filed more than
60 days after issuance of the order by the head of the agency. Review
shall conform to Chapter 7 of Title 5, United States Code.
[FR Doc. 94-29422 Filed 11-30-94; 8:45 am]
BILLING CODE 6820-34-P
